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Checklist: Do you really have grounds to sue for defamation?

Posted by Steve Vondran | Jan 03, 2016 | 0 Comments

California Defamation Jury Instructions – Can you PROVE defamation?  If so, we might be able to help you recover significant money damages for libel and slander on the internet.

online defamation attorney California


Defamation used to be known as “the tort of the rich and famous.”  The main reason being that it was often difficult for a Plaintiff to prove they were damaged.  However, in the new era of the internet, digital internet defamation can seriously damage a company or individual due to the permanency of the publication and the fact that digital content can be shared making it difficult to ever “put the jeannie back in the bottle.”  However, that being said, a Plaintiff in a defamation (libel or slander) case still must bear the burden to prove each of the elements of the tort.  This blog will serve as a guide for Plaintiff's and Defendants to show what MUST be proven, and what some of the possible defenses are.  If you are a litigant in a defamation case and seeking legal counsel, fill out the contact form below or call us.

NOTE:  this blog is general legal information only.  Each state will have a different version of the law, so do not rely on this blog.  Seek counsel in your state.

Libel vs. Slander

Many people are not clear on the different between libel and slander.  The difference is quite simple.  Both are forms of defamations but the distinction is:

Libel = written defamation (ex. something published in a newspaper, magazine, on a website, etc.)

Slander = oral defamation (ex. defaming a person or company or spoken word, not written down).

Libel is a trending type of defamation because it can occur so easily on the internet in chat rooms, discussion boards, review websites (such as Yelp), Facebook, Twitter, Reddit, and other social media websites.

Attorney Steve® says "know the defenses to defamation before you sue as a Plaintiff"

What is libel per se?

Certain types of ORAL statements (see defamation of “statement” below) are so bad they will be deemed “libel per se.”  These are set forth in the California Civil Code section 46 which states:

“Slander is a false and unprivileged publication, orally uttered, (and also communications by radio or any mechanical or other means) which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; (ex.  “Mike is a felon”)

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease (ex. “Joe has herpes”);

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; (ex: “I wouldn't use Lisa as your property manager because I heard she stole trust funds from her clients and lost her real estate license several years ago”);

4. Imputes to him impotence or a want of chastity (ex. “Suzie is a whore”);

5. Which, by natural consequence, causes actual damage

Again note item#5 which notes that the false and defamatory oral statement must CAUSE actual damage unless it is one of the first four items above.  The first four are known as LIBEL PER SE.  Where you have libel per se – DAMAGES ARE PRESUMED AND THERE ARE NO NEED TO PROVE ACTUAL DAMAGES.

Listen to our Vondran Legal Hour Podcast where Attorney Steve discusses the elements to prove defamation

What is defamation per quod?

If you DO NOT have slander per se, it is slander per quod and actual damages must then be proven.  As noted in Nethercutt Collection v. Regalia (2009) 172 Cal.App.4th 361, 367 [90 Cal.Rptr.3d 882]:

“A slander that falls within the first four subdivisions of Civil Code section 46 is slander per se and requires no proof of actual damages. A slander that does not fit into those four subdivisions is slander per quod, and special damages are required for there to be any recovery for that slander.”

The same is true for libel.  As noted in Palm Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 5 [86 Cal.Rptr.2d 73]:

“If a defamatory meaning would appear only to readers who might be able to recognize it through some knowledge of specific facts and/or circumstances, not discernible from the face of the publication, and which are not matters of common knowledge rationally attributable to all reasonable persons, then the libel cannot be libel per se but will be libel per quod.”

As courts in California have noted:

“In pleading a case of libel per quod the plaintiff cannot assume that the court has access to the reader's special knowledge of extrinsic facts but must specially plead and prove those facts……a libel ‘per quod,' requires that the injurious character or effect be established by allegation and proof.” See Slaughter v. Friedman (1982) 32 Cal.3d 149, 153—154 [185 Cal.Rptr. 244, 649 P.2d 886].

Cal. defamation checklist (Plaintiff must be able to prove EACH of these elements) [CACI 1705 – Private party with non-public issue]:

Here is a general defamation checklist you can look to as a guide for determining whether or not you can prove your case for defamation.  Note that Plaintiff bears the “burden of proof” to prove EACH Of the following elements by a PREPONDERANCE OF THE EVIDENCE.  If Plaintiff cannot prove even ONE ELEMENT below, he / she cannot recover.

  1. False (truthful statements are protected);
  2. Statement;
  3. Of fact (opinions are protected by the first amendment);
  4. “Of and concerning” the Plaintiff (meaning the party that observed the publicated defamatory statement reasonably understood that the statements were about the Plaintiff);
  5. Publicated to a third party (for example, if someone sends you an email and calls you a whore, there is no publication to a third party, and thus no cybertort);
  6. Causes
  7. Injury/damages to Plaintiff (unless you have one of the per se categories noted above).  As noted by jury instruction #1705 there must be an injury in most cases:

“That because of the facts and circumstances known to the [listener(s)/reader(s)] of the statement(s), [it/they] tended to injure [name of plaintiff] in [his/her] occupation [or to expose [him/her] to hatred, contempt, ridicule, or shame] [or to discourage others from associating or dealing with [him/her]]”

Attorney Steve Tip:  As you might have noted, item #6 can be tough to prove.  You have to prove some type of injury.  This is not always as easy as it sounds and is something to think about before filing a defamation lawsuit.  Also note that in addition to proving each of these, the Plaintiff must be sure the Defendant will not succeed in raising an AFFIRMATIVE DEFENSE.  See more below.

There must be a false “STATEMENT” – [CACI 1706]

What does it mean to make a defamatory “statement?” Cal jury instruction #1706 defines this term:

“The word “statement” in these instructions refers to any form of communication or representation, including spoken or written words [or] pictures [or] [insert audible or visual representations].

Cal Civil Code section 45 provides: “libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”

Cal. Civil Code section 46 provides: “slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means.

The definition of “statement” is therefore broad and almost anything that tarnishes or disparages another's reputation can qualify.  This can include an oral or written statement made in a blog, video, twitter post, facebook post, email, podcast, discussion board comments, or other publications to a third party.  The statement must also be “false” and provable as such.

One example might be in a software audit case with the Business Software Alliance, let's say you have a ex-employee running around claiming your company is engaged in software piracy (in the hopes of obtaining a reward – posing as some sort of whistleblower). However, the informant is really more interested in revenge and corporate sabotage than anything else, and they call the BSA and informs them you are short on your CAL licenses, windows servers licenses, Visio, or Office products just to name a few.  As a company, your IT department has all the receipts to show all software is properly licensed.  This would literally PROVE that the informant was making a false statement of fact and trying to slander or defame your business.  This could provide grounds for you to sue the informant.

What is the difference between FACT and OPINION (this is key).  [CACI 1707]

In analyzing your defamation case, it is important to know the difference between a potential defendant making a false statement of FACT and a statement of personal OPINION.  True opinions are protected by the First Amendment (free speech) to the U.S. Constitution.  Watch this legal video by Attorney Steve Vondran which explains the first amendment and the EXCEPTIONS TO THE FIRST AMENDMENT.

California jury instruction #1707 informs us as to the elements of this defense:

“For [name of plaintiff] to recover, [name of defendant]'s statement(s) must have been statements of fact, not opinion.

A statement of fact is a statement that can be proved to be true or false.

An opinion may be considered a statement of fact if the opinion suggests that facts exist.

In deciding this issue, you should consider whether the average [reader/listener] would conclude from the language of the statement and its context that [name of defendant] was making a statement of fact.”

As the Court noted in Campanelli v. Regents of Univ. of Cal. (1996) 44 Cal.App.4th 572, 578:

“The critical determination of whether an allegedly defamatory statement constitutes fact or opinion is a question of law for the court and therefore suitable for resolution by demurrer. If the court concludes the statement could reasonably be construed as either fact or opinion, the issue should be resolved by a jury.”

Thus, if the Court determines the statement was obviously just an opinion of the party making the statement, the Court could dismiss the case on Demurrer.  Click here for Attorney Steve's discussion on Demurrers.  Given this defense, California courts have noted:

“Rhetorical hyperbole, vigorous epithets, lusty an imaginative expressions of contempt and language used in a loose, figurative sense have all been accorded constitutional protection.”   See Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401 [88 Cal.Rptr.2d 843].

Again, the Courts do not want to “stifle” or chill free speech, and where a lawsuit is filed a Defendant may file an ANTI-SLAPP legal response which could result in the PLAINTIFF paying DEFENDANT'S attorney fees (a twist of fate you could say).  Other courts have chimed in on “opinion” and the first amendment defense to defamation:

“If a speaker says: ‘in my opinion John Jones is a liar,' he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.” See Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18 [110 S.Ct. 2695, 111 L.Ed.2d 1].

Courts will judge statements based on the entire circumstances.  As noted in the Cal Jury instructions:

“California courts use a “totality of the circumstances” test to determine if a statement is one of fact or of opinion. See Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260 [228 Cal.Rptr. 206, 721 P.2d 87]. “The court must put itself in the place of an average reader and decide the natural and probable effect of the statement.” See Hofmann Co. v. E.I. Du Pont de Nemors & Co. (1988) 202 Cal.App.3d 390, 398 [248 Cal.Rptr. 384]. Some statements are ambiguous and cannot be characterized as factual or nonfactual as a matter of law. ‘In these circumstances, it is for the jury to determine whether an ordinary reader would have understood the article as a factual assertion.”  See Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1608 [284 Cal.Rptr. 244].”

Public figure vs. non-public figure / Private issue v. issue of public concern (more first amendment concerns)

The outcome of your defamation case can depend on whether or not the Plaintiff is a public figure, and whether or not the statement is one of public concern.   Again, where you have public figures, or statements made about issues of public concern (as opposed to purely private matters that involve “no name” Plaintiffs) the Courts will usually seek to foster free speech and allow robust debate in the “marketplace of ideas.”  This factor has to be examined in every defamation case.  As you will note when you start reviewing the CAL JURY INSTRUCTIONS on the topic of defamation, there are many different instructions depending on the type of Plaintiff and type of Defendant as you can see here.  The easiest way to figure this out is to contact one of our internet defamation lawyers to review and analyze your case.  Fill out the contact form below.

What types of monetary damages can be recovered for defamation?

  1.  Actual damages

As noted in CACI 1705 damages in a defamation case may be recovered as follows:

“Actual Damages

If [name of plaintiff] has proved all of the above, then [he/she] is entitled to recover if [he/she] proves that [name of defendant]'s wrongful conduct was a substantial factor in causing any of the following actual damages:

a. Harm to [name of plaintiff]'s property, business, trade, profession, or occupation;

b. Expenses [name of plaintiff] had to pay as a result of the defamatory statements;

c. Harm to [name of plaintiff]'s reputation; or

d. Shame, mortification, or hurt feelings

Obviously some of these items of damages may not be as easy to quantify as others.  You need to make the case for damages in your complaint and obtain as much proof as possible to prove to the jury at trial.

      2.  Punitive damages (if Plaintiff has CLEAR AND CONVINCING EVIDENCE of fraud, malice or oppression).

CACI jury instruction also permits punitive damages in limited circumstances, but Plaintiff's should use Cal. Civ. Code 3294 as a guide.  See also CACI Nos. 3940—3949.

Does retraction make a difference?

If you have a defendant that is a newspaper or broadcaster Defendant YOU MUST read these California retraction jury instructions.

Sample Affirmative Defenses in Defamation Actions in CA

 1.  Truth [CACI 1720]

Pursuant to Section 581A of the Restatement Second of Torts: “a person who publishes a defamatory statement of fact is not liable for defamation if the statement is true.”  Here is the California jury instruction for truth as a defense to defamation (obviously people cannot be held liable for speaking the truth):

“Truth [Name of defendant] is not responsible for [name of plaintiff]'s harm, if any, if [he/she] proves that [his/her] statement(s) about [name of plaintiff] [was/were] true.

[Name of defendant] does not have to prove that the statement(s) [was/were] true in every detail, so long as the statement(s) [was/were] substantially true.

Attorney Steve Tip:  Note the burden of proof on this issue (in a case involving a private matter with a private Plaintiff) is ON THE DEFENDANT to prove the statements they made were substantially true.  This make is important not to open your mouth and defame another person or company with your “OPINON” when in fact your statement was an injurious falsehood.  Note also that in cases involving public figures or matters of public concern, the burden of proving falsity is on the plaintiff.  This is a very important issue to keep in mind.

As the court noted in Campanelli v. Regents of Univ. of Cal. (1996) 44 Cal.App.4th 572, 581—582:

“In order to establish the defense, the defendant need not prove the literal truth of the allegedly libelous accusation, so long as the imputation is substantially true so as to justify the ‘gist or sting' of the remark.”

2.  Consent [CACI 1721]

If a Plaintiff consents to a false statement he/she cannot complain that a tort was committed.  For example, if a Plaintiff asks a Defendant to repeat a statement they cannot then file a defamation lawsuit over it.  See Royer v. Steinberg (1979) 90 Cal.App.3d 490, 498.  The CACI #1721 jury instruction addresses this point:

“[Name of defendant] is not responsible for [name of plaintiff]'s harm, if any, if [he/she] proves that [name of plaintiff] consented, by words or conduct, to [name of defendant]'s communication of the statement(s) to others.

In deciding whether [name of plaintiff] consented to the communication, you should consider the circumstances surrounding the words or conduct.

The consent of another to the publication of defamatory matter concerning him is a complete defense to his action for defamation.”  [See Restatement Second of Torts, section 583].

As you can see, consent can work as an absolute privilege to a cause of action alleging libel or slander (defamation).

3.  Statute of Limitations [CACI 1724]

Another possible defense available to defamation defendants is the statute of limitations.  Again, the jury instructions in California address this affirmative defense (meaning the Defendant must raise and prove the defense):

“[Name of defendant] contends that [name of plaintiff]'s lawsuit was not filed within the time set by law.

To succeed on this defense, [name of defendant] must prove that [he/she/it] first communicated the alleged defamatory statement to a person other than [name of plaintiff] before [insert date one year before date of filing].

[For statements made in a publication, the claimed harm occurred when the publication was first generally distributed to the public.]

[If, however, [name of plaintiff] proves that on [insert date one year before date of filing] [he/she/it] had not discovered the facts constituting the defamation, and with reasonable diligence could not have discovered those facts, the lawsuit was filed on time.]

As the instructions note:

“This instruction is for use if the defendant claims that the plaintiff's action was not filed within the applicable one-year limitation period for defamation. (See Code Civ. Proc., § 340(c).  If the defamation was published in a publication such as a book, newspaper, or magazine, include the last sentence of the first paragraph, and do not include the second paragraph The delayed-discovery rule does not apply to these statements. See Shively v. Bozanich (2003) 31 Cal.4th 1230, 1250—1251.”

Can a lawyer commit defamation?

VIDEO: Here is an older video I shot that discusses special privileges to defame by a lawyer or attorney in contemplation of litigation.

Bottom line

As you can (hopefully) see, proving defamation (libel or slander) is no easy task, and proving DAMAGES (if you do not have a per se type of case) can also be a challenge.  The first amendment can also present free speech challenges (parody being one that could arise), and the burden of proof in these cases can determine whether you win or lose.  We hope this general checklist has been helpful.

Contact a defamation lawyer (we handle CA and AZ cases)

If you are a potential Plaintiff or Defendant in a libel, slander or defamation action we can help defend your reputation and file an Anti-Slapp motion where necessary.  We can help review your case and determine the best course of action or best defense for litigants on both sides of the dispute.  We also handle cyber-bullying, hate speech, and parody defense.  Some cases we may be able to take on a full or partial contingency fee basis.

Contact us at (877) 276-5084 or fill out the contact form below to have of our defamation lawyers contact you, normally within the hour.

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337


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